Dale v. State

27 Ala. 31

Opinion

GOLDTHWAITE, J.

If it be conceded that if tbe defendant bad played in tbe lower story of tbe bouse-be would have been guilty under tbe law (Code, § 3243), it does not follow that playing in a different part of tbe same bouse would necessarily, and under all circumstances, fall witbin tbe section referred to. If separate parts of the same building were disconnected, and appropriated to distinct and separate uses, it would be tbe same, in law, as if they were two buildings, so far as this offence is concerned ; and where the playing takes place in a room, rented and occupied by one person for a sleeping apartment, in tbe second story of a bouse, the fact that tbe first story is used by another person to sell vinous and spirituous liquors in, does not, of itself, make the part which is appropriated to such separate purpose. partake of its character, so as to warrant a conviction of either of tbe offences in tbe indictment.

Judgment reversed, and cause remanded.